Child Fatality Review Team Participating Judge: Conflict Judge's Designee 

March 22, 2001

CJE Opinion No. 2001-4

Chapter 247 of the Acts of 2000, entitled "An Act Relative to the Establishment of a Child Fatality Review Team," amends G. L. c. 38 by adding several statutory provisions designed to establish in the office of the Chief Medical Examiner, and in the office of each District Attorney, a "child fatality review team." The statute provides that the Chief Justice of the Juvenile Division of the Trial Court or her designee shall be a member of the State Team and each Local Team. Each Local Team and the State Team are composed of representatives of different state law-enforcement and social-service agencies. The State Team is chaired by the Chief Medical Examiner and each Local Team is chaired by the District Attorney for the county where the team has been formed.

In the words of the statute, the State Team's mission is to "decrease the incidence of preventable child deaths and injuries" by accomplishing a variety of different tasks. To that end, the State Team is charged, among other things, with "develop[ing] model investigative and data collection protocols for local child fatality teams," reviewing reports from local teams, and "analyz[ing] community, public and private agency involvement with decedents and their families prior to and subsequent to the deaths." Annually, the State Team must provide the Governor, the General Court and the public with a written report containing the Team's findings and recommendations.

Under the statute each Local Team has the same goal. To accomplish that goal, the Local Team is charged, among other things, with the task of "coordinating the collection of information on child deaths," "promoting cooperation and coordination between agencies responding to child deaths and in providing services to family members" and "advising the state team on changes in law, policy or practice which may affect child deaths and injuries." To carry out those missions, the Local Team is required, again among other things, to "review, establish and implement model protocols from the state team," "review, subject to the approval of the local District Attorney, all individual child deaths in accordance with the established protocol," "collect, maintain and provide confidential data as required by the state team" and "provide law-enforcement or other agencies with information for the purposes of the protection of children." The statute provides that "[a]t the request of the local district attorney the local team shall be immediately provided with," among other things, "information and records relevant to the cause of death of the child whose death is being reviewed by the local team, by providers of medical or other care, treatment or services, including dental and mental health care," and "information and records relevant to the cause of death maintained by any state, county or local government agency including, but not limited to, birth certificates, medical Examiner investigative data, parole and probation information records, and law-enforcement data post-disposition, except that certain law-enforcement records may be exempted by the local district attorney." Finally, the statute gives the District Attorney the power to enforce the foregoing provisions "by seeking an order of the Superior Court."

[Against that backdrop,] you have asked the Committee two questions. First is whether the "statute as drafted, with a judge sitting as a representative of the Child Fatality team would present a conflict of interest for the judge." The second is whether, "if the judge were to select a designee from the court, such as a probation officer, could not that also be perceived as a potential conflict?"

Although it recognizes the difficulty and urgency of the problem and although it would very much like to assist in the problem's solution, the Committee must respectfully decline, for three separate reasons, to answer both questions.

First of all, S.J.C. Rule 3:11 governs the Committee's operations and expressly prohibits the Committee from rendering opinions on hypothetical questions. Rule 3:11(2). It does so because determining the extent to which activity conflicts with a given Canon's command is an intensely fact-bound exercise. Circumstances that might produce a violation of a Canon in one instance might well lead to a completely different result in a slightly different context. Consequently, few questions regarding the Canons can be answered abstractly or absolutely. Here, virtually all facts are unknown. Indeed, we do not even know how the statutory scheme will function in practice.

Secondly, an opinion from this Committee that service on a State or Local team violates the Code of Judicial Conduct would, as a practical matter, likely end judicial participation in the statute's operation and thus frustrate the goal the Legislature sought to achieve by including judges or judicial designees on the State and Local Teams. As a matter of general prudence, the Committee believes that an opinion having the potential effect of crippling a Legislative enactment ought to be made after a full opportunity for briefing and hearing by all potentially affected parties and should not emanate from a Committee like this one which simply is not authorized or equipped to solicit and review briefs or other submissions from individuals or groups with differing interests in the process of issuing its decisions. All of this is not to say that the Committee necessarily believes that service on a Team would in fact and under all circumstances violate the Code. It is simply to state one of the reasons that the Committee believes it would be unwise to consider the issue on the merits.

Third, but closely connected to the prudential considerations just mentioned, the answers to the questions you have posed are by no means clear-cut. Canon 5(G) provides that

"[a] judge should not accept appointment to a governmental committee, commission, or other position that is concerned with issues of fact or policy on matters other than the improvement of the law, the legal system or the administration of justice. The foregoing is subject to any limitations imposed by the Constitution of the Commonwealth with respect to any such appointment."

It may be that the State and Local Teams' function as one that pertains to the "administration of justice" broadly viewed. In that regard, commentary to the version of Canon 5(G) appearing in the Code of Conduct for United States Judges states that

"it is hardly the function of a code of judicial conduct to compel judges to refuse, without careful regard of the circumstances, tasks Congress has seen fit to authorize as appropriate in the public interest."

The same can be said of tasks the General Court has asked judges to perform here.

It may also be, however, that the State and Local Teams' main function centers on investigation of particular deaths to determine their cause and the individual or systemic failings that may have produced those deaths. Arguably, investigating a particular historical event as part of a team created to propose measures, statutory or administrative, designed to regulate primary conduct does not fit within the concept of "administration of justice" as that term is used in Canon 5(G). In that regard, Federal Canon 5(G) states as follows:

"A judge should not accept appointment to a governmental committee, commission, or other position that is concerned with issues of fact or policy on matters other than the improvement of the law, the legal system, or the administration of justice, unless appointment of a judge is required by Act of Congress. A judge should not, in any event, accept such an appointment if the judge's governmental duties would interfere with the performance of judicial duties or tend to undermine the public confidence in the integrity, impartiality, or independence of the judiciary."

Interpreting and construing that Canon, the Code of Conduct Committee of the Judicial Conference of the United States reached the following conclusion notwithstanding the Canon's permissive language and the language of the commentary quoted above:

"Canon 5(G) precludes a judge's service on a governmental committee established to study preventive, educative, social, and legal strategies addressing problems of violence and to report back to the legislature. Such service would inappropriately involve the judge in matters of public policy and would not be limited to matters of improving the law as to which the judge would have a unique perspective. In addition, service on such a committee could give rise to questions of judicial participation in legislative functions and could require frequent recusal in cases involving the interpretation of such laws."

Guide to Judiciary Policies and Procedures, Vol. II, Ch. V, Compendium §5.3-7[4](j)(1999). Indeed, the federal committee's comments appear to go beyond mere interpretation of the Code of Judicial Conduct to impact on constitutional considerations pertaining to separation of powers. See generally, art. 30 of the Declaration of Rights of the Massachusetts Constitution.

Having declined for the foregoing reasons to answer your questions, the Committee nevertheless is of the opinion that potential problems with service on the State or Local Teams by judges or judicial employees could be reduced, if not eliminated, if you were to "designate" for Team service someone who was neither a judge nor answerable to a judge and if you instructed the designee that he or she was not to report to you with respect to his or her Team activities and recommendations. In other words, if you chose as the appropriate "designee" an attorney, a law professor, a pediatrician or some other non-judicial individual interested in and knowledgeable about problems particularly affecting at-risk children, at least the ethical problems the statute otherwise presents would be minimized. Whether and to what extent designating such a person would be consistent with the statutory spirit and intent is a question beyond the Committee's competence and its suggestion thus springs solely from considerations produced by the Code.